The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Before the court is defendant Derrick Wayne Griffin's motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. For the following reasons, the court denies defendant's
motion with prejudice.
On July 23, 1993, defendant Derrick Wayne Griffin ("Griffin")
pleaded guilty to violating 18 U.S.C. § 371 and 1962(c). On
October 26, 1993, this court sentenced Griffin to a 300 month
term of imprisonment. At the preliminary hearing, arraignment,
plea, and sentencing phases, attorney Richard F. Walsh ("Walsh")
represented Griffin. Neither Griffin nor Walsh filed a notice of
appeal on behalf of Griffin.
From 1993 until 1997, Griffin was in the custody of the State
of Illinois. Sometime during 1997, Griffin entered the federal
On November 27, 1998, Griffin filed a letter, asking this court
to grant him leave to file a § 2255 motion. The court informed
Griffin that the court cannot consider ex parte communications
and that if he wished to request leave to file a § 2255 motion,
he must do so by way of motion. On January 27, 1999, Griffin
filed a motion for leave to file an untimely § 2255 motion. On
February 23, 1999, this court granted Griffin leave to file a §
2255 motion. At that point, the court made no determination as to
whether the motion was timely or not. The court simply allowed
Griffin to file the § 2255 motion, leaving it up to the
government to raise whatever objections to the motion there may
be, including an objection to the motion's timeliness.
On March 5, 1999, Griffin filed the present § 2255 motion and a
memorandum of law in support of his § 2255 motion. On May 25,
1999, the government responded to Griffin's § 2255 motion. In its
response, the government moved this court to dismiss Griffin's §
2255 motion as untimely, arguing that the motion was barred by
the one-year period of limitations contained in 28 U.S.C. § 2255
("§ 2255's limitations period").
On June 8, 1999, the court denied the government's motion to
dismiss. United States v. Griffin, 58 F. Supp.2d 863
(N.D.Ill. 1999). The court acknowledged that Griffin's § 2255
motion was not filed within § 2255's limitations period. Id. at
865. The court held, however, that (1) § 2255's limitations
period is not jurisdictional but is procedural and, thus, subject
to equitable tolling and (2) Griffin's allegation that he told
Walsh to appeal and Walsh failed to do so was sufficient to
warrant an evidentiary hearing on the issue to determine whether
§ 2255's limitations period should be equitably tolled in this
case. Id. at 868-69.*fn1 The court then appointed an attorney
to represent Griffin at an evidentiary hearing, which was to be
held to determine (1) whether Griffin in fact told Walsh to
appeal his case and, if so, (2) when Griffin became or should
have become aware that Walsh failed to appeal his case. Id. at
On July 22, 1999, the court held an evidentiary hearing to
resolve the above issues. Two witnesses testified at the hearing:
Griffin and Walsh. After the witnesses testified, Griffin's
attorney and the attorney for the government presented their
closing arguments. The court took the case under advisement in
order for it to carefully consider the evidence presented and the
arguments made during the evidentiary hearing.
In this case, there is no dispute that Griffin's judgment of
conviction became final well before the enactment of the
Anti-terrorism and Effective Death Penalty Act ("AEDPA") and,
thus, that Griffin had from one year after April 24, 1996 to file
his § 2255 motion. See Gendron v. United States, 154 F.3d 672,
674-75 (7th Cir. 1998).*fn2 Griffin, however, did not file his §
2255 motion until well after § 2255's limitations period had
expired.*fn3 Thus, Griffin's § 2255 motion is barred by § 2255's
limitations period unless he can show that equitable tolling is
warranted in this case. See Griffin, 58 F. Supp.2d at 869.
The doctrine of equitable tolling "permits a plaintiff to avoid
the bar of the statute limitations if despite all due diligence
he is unable to obtain vital information bearing on the existence
of his claim." Cada v. Baxter Healthcare Corp., 920 F.2d 446,
451 (7th Cir. 1990). The petitioner must show that he "exercised
reasonable diligence in investigating and bringing [the] claims."
Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616,
618-19 (3d Cir. 1998). Equitable tolling of § 2255's limitations
period should be granted only in "extraordinary circumstances."
Id. at 618; see also Miller v. Runyon, 77 F.3d 189, 191 (7th
Cir. 1996). Mere excusable neglect is insufficient. Miller, 145
F.3d at 619. Equitable tolling might be warranted in a case where
the criminal defendant instructed his attorney to appeal but the
attorney failed to do so. See Griffin, 58 F. Supp.2d at 869
(citing Castellanos v. United States, 26 F.3d 717, 718-19 (7th
Cir. 1994) (holding that a lawyer's failure to carry out a
to appeal constitutes ineffective assistance of counsel)).
The precise issue before the court is whether Griffin has shown
that equitable tolling is warranted in this case based on his
claim that he told Walsh to appeal but Walsh failed to do so.
This is the issue on which the July 22, 1999 evidentiary hearing
was held. Two witnesses testified at the hearing: Griffin and
Walsh. During the evidentiary hearing, the court had the unique
opportunity to observe the demeanor of the testifying witnesses.
Having heard the evidence, had the opportunity to judge the
credibility of the witnesses, considered ...